British American Tobacco UK Ltd, R (On the Application Of) v Secretary of State for Health

Permission to intervene in judicial review proceedings is discretionary. The court must assess whether the proposed intervention will assist the administration of justice, while balancing its benefits against inconvenience, delay and expense and applying the overriding objective.

A person’s interest in the outcome, or inability to challenge the measure in another Member State, is insufficient where the proposed contribution adds no proportionate value. Permission to intervene under CPR Part 54.17 does not automatically confer status as a party to a preliminary reference under Article 267 TFEU. Domestic courts must exercise restraint when determining who is a party to the main proceedings.

British American Tobacco UK Ltd and Philip Morris Brands Sarl and Philip Morris Ltd brought judicial review claims challenging the validity of Directive 2014/40/EU. Since validity was a matter for the Court of Justice of the European Union, the claims were expected to lead to a reference under Article 267 TFEU.

Krajowy Zwiazek Plantatorow Tytoniu, representing Polish tobacco growers, applied under CPR Part 54.17 to file evidence and make representations concerning the impact of the Directive, particularly its proposed ban on menthol cigarettes. The central issues were whether its intervention would assist the court proportionately and whether an intervener would thereby become a party entitled to participate in the reference.

1. Application refused. Krajowy Zwiazek Plantatorow Tytoniu was not permitted to intervene. The evidence it wished to adduce substantially duplicated material available through British American Tobacco, was likely to be uncontroversial, and would add no proportionate value. Its legitimate interest in the Directive and the absence of an effective immediate challenge in Poland did not outweigh the limited practical contribution, the tenuous connection with the United Kingdom and the risk of encouraging use of domestic procedural machinery by persons with little connection to the jurisdiction.
2. Under CPR Part 54.17, the court’s discretion must be exercised consistently with the overriding objective. The relevant balance is between the assistance intervention may provide and the inconvenience, delay and expense caused to the existing proceedings. The approach stated in R (Air Transport Association of America Inc) v Secretary of State for Energy and Climate Change [2010] EWHC 1554 did not require permission on the facts of this case.
3. Even if permission had been granted, an intervener would not automatically be a party to the domestic litigation for the purposes of the CJEU reference. Football Association Premier League v QC Leisure (2009) C-403/08 and C-429/08 showed that a definite interest in the answers to referred questions did not itself confer party status.
4. The current Rules of Procedure of the CJEU, particularly Article 97, identify the parties to the main proceedings by reference to the referring court’s determination under national procedural rules. The domestic court should therefore avoid treating every person with an interest, or every person given limited permission under CPR Part 54.17, as a party entitled to participate in the reference.
5. The reasoning in Alcohol Focus Scotland v Scotch Whiskey Association [2014] CSIH reinforced that an intervener’s procedural standing did not necessarily make it a party to the main proceedings. The court accordingly declined to exercise its discretion and held that, in any event, KZPT would not have had party status for the proposed reference.

First-instance judicial review proceedings. No prior appellate decision was stated in the judgment.